Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-Subordination Approach to the Labor-Based Admission of Nonprofessional Foreign Nationals
49 Pages Posted: 30 Aug 2017
Date Written: January 15, 2008
Comprehensive immigration reform has been a top legislative priority for the last several years, and recent bills have contemplated the expansion of guest worker programs to adjust the status of undocumented immigrants and to control the future migrant flow. While there is a broad consensus that the current immigration system is broken, there is sharp disagreement about whether it is wise public policy to expand labor-based admissions in order to provide nonprofessional foreign nationals with an authorized means to migrate. This Article contributes to this debate by examining current guest worker programs, and recommends their reform through a “non-subordination” approach that balances the interests of nonprofessional foreign nationals and U.S. workers. Analyzing the current work visa programs, this Article determines that there exist worker disincentives to complain about or to leave exploitative workplaces, illusory visa-based rights and exemptions from and under-enforcement of key workplace protections, and caps and other limitations on guest worker programs that do not approach the migration demand,resulting in increased unauthorized migration and the expansion of the underground economy. These conditions create formal and informal systems of inequality that subordinate guest workers in the workplace, and fail to provide a meaningful avenue to engage in authorized migration. Small and restricted guest worker programs also harm nonprofessional U.S. workers, who cannot compete with a captive guest workforce or undocumented workers in the underground economy.
This Article proposes a “non-subordination” approach to labor-based admissions that would reduce the centrality of individual employers in guest workers’ recruitment and authorized presence in the U.S., equalize the workplace rights of nonprofessional foreign nationals with U.S. workers, expand authorized admissions, and permit the circular migration and the eventual permanent settlement of visa holders. This approach would balance the nonprofessional foreign national interests in authorized migration and in equality in the workplace, and the nonprofessional U.S. worker interests in controlling the migrant flow and in preserving workplace standards. Finally, this approach would not be objectionable to employers, who could employ foreign nationals with reduced government restriction and delay. This Article concludes that while this approach would better control the migrant flow and preserve workplace standards, it would not fully address unauthorized migration, which would require a shift in foreign policy to address global inequality.
Keywords: Employment Law, Immigration Law
JEL Classification: J15, J81
Suggested Citation: Suggested Citation